In order to eliminate the perception that “justice is for sale,” Justice at Stake—and everyone who believes that fair and impartial courts are essential to the preservation of a functioning democracy—must work to achieve the reforms necessary to insulate judicial candidates from the perception that their decisions are unduly influenced by campaign contributions. Perhaps most importantly, we must do everything possible to help our fellow citizens understand that, unlike elected legislative representatives and other elected officials, judges are not selected or elected to “represent” citizens’ views but rather are mandated to consider the facts in each case carefully and apply the law to those facts fairly and impartially.

There is an alternate universe where everything violates the Tenth Amendment—and much of Congress lives in it. Senator Tom Coburn believes that all federal education programs, from Pell Grants to Title I to student loans, violate the Constitution. Senator Rand Paul thinks that the federal ban on whites-only lunch counters is forbidden. Senator Mike Lee believes that child labor laws, federal disaster relief, food stamps, the Food and Drug Administration, Medicaid, income assistance for the poor, and even Medicare and Social Security violate the Constitution. And, of course, half Congress thinks that health reform is unconstitutional.

Surely it cannot be the case that nearly 100 years worth of major legislation violates the Constitution?

And yet, there is a growing movement on the American right that believes just that. Part I of this Essay begins in familiar territory: the battle over the Commerce Clause. It explains how the ubiquitous lawsuits challenging the Affordable Care Act (ACA) are animated by the same interpretative methodology that characterized the infamous Supreme Court decision concerning child labor laws, Hammer v. Dagenhart—a methodology which allows judges to impose novel and extra-textual limits upon Congress’s enumerated powers. As this Part makes clear, a legal theory that would strike down the ACA bears no resemblance to the much more modest limits on congressional power outlined by modern cases such as United States v. Lopez and United States v. Morrison. Unlike Lopez and Morrison, cases like Hammer and the two recent district court decisions striking down the ACA have no grounding in constitutional text.

Part II dives even further back into constitutional history. It explains that a growing number of prominent conservatives, including many current Members of Congress, want to revive a 230-year-old constitutional “ghoul” which would so completely eviscerate federal power that even the Lochner-era Supreme Court unanimously decided that it must remain buried. Under these conservatives’ vision of congressional power, cherished federal spending programs such as Social Security, Medicare, Medicaid, and Pell Grants would all cease to exist. The Essay concludes by briefly exploring why the emergence of these unusual constitutional views among elected lawmakers is sadly likely to influence judicial decisions in the future.

Labels are important in policy debates. The “broadcast flag” effort was very nearly successful in forcing all devices capable of receiving television broadcasts (including PCs) to be designed in order to protect “flagged” content. Who could be against a flag? By contrast, “net neutrality” advocates have had difficulty convincing anyone to care about something that sounds so, well, neutral.

One effective label that has often been used during the first two years of the Obama administration is the “looming spectrum crisis.” FCC Chairman Genachowski said in October 2009: “I believe that that the biggest threat to the future of mobile in America is the looming spectrum crisis.” As the crisis loomed, the administration—worried about the lack of spectrum allocated for high-speed Internet access—declared it would re-allocate 500 MHz of spectrum. There is a hunt on for spectrum: Every closet in every agency is being searched. Looming. Crisis.

It may be time for yet another label to enter the lists: “the looming cable monopoly.” It is gaining strength, and it is not terribly interested in the future of the Internet. This is the central crisis of our communications era.